For the last two months, we’ve all watched the news about the National Security Agency and its friends over at the Foreign Intelligence Surveillance Court (FISC), which approves secret orders on behalf of the NSA and other spy agencies. But more often than not, a lot of these articles take the same basic structure: documents provided by NSA leaker Edward Snowden show X, and then privacy advocates and civil libertarians decry X for Y reason.

That now raises the question, what would these privacy advocates do if they were put in charge of the NSA and the FISC? Or more specifically, what changes would they immediately enact at those two opaque institutions?

Ars checked in with some of the best technical and legal minds that we know: Bruce Schneier, one of the world’s foremost cryptographers, and Jennifer Granick, an attorney and director of Civil Liberties at Stanford University’s Center for Internet and Society. For a historical perspective, we chatted with Gary Hart, a former United States senator from Colorado who served on the Church Committee in 1976. Its recommendations led to the creation of the Foreign Intelligence Surveillance Act (FISA) and the FISC. We also looked at recent public statements by the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union (ACLU).

“There’s a fundamental problem in that the issues are not with the NSA but with oversight,” he told Ars. “[There’s no way to] counterbalance the way [the NSA] looks at the world. So when the NSA says we want to get information on every American’s phone call, no one is saying: ‘you can’t do that.’ Without that, you have an agency that’s gone rogue because there is no accountability, because there is nothing checking their power.”

The way Schneier sees it, in an attempt to keep the operational details of the targets secret, the NSA (and presumably other intelligence agencies, too) has also claimed that it also needs to keep secret the legal justification for what it’s doing. “That’s bullshit,” Schneier says.

The famed computer scientist wants to apply traditionally open and public scrutiny to how the NSA operates.

“How much does this stuff cost and does it do any good?” he said. “And if they can’t tell us that, they don’t get approved. Let’s say the NSA costs $100 million annually and that an FBI agent is $100,000 a year. Is this worth 1,000 FBI agents? Or half and half? Nowhere will you find that analysis.”

For the record: the size of the NSA’s budget is officially classified as secret, but estimates put it at least at $8 to $10 billion annually—but his point stands. It’s nearly impossible to judge the effectiveness of federal spending of an unknown sum, whose tactics, legal justifications, and most importantly, outcomes, are completely hidden from the public.

“We deliberately have given ourselves an inefficient form of government and an inefficient form of policing because we recognize the dangers in giving people so much power without any oversight or accountability,” he concluded.

Similarly, former Senator Gary Hart said that the intelligence apparatus has ballooned out of control in the United States in recent years.

“The use of outside consultants [and] private companies by these dozen and a half intelligence agencies is out of hand,” Hart said. “We don’t know how many companies there are, how many people they employ. We do know there are 1 million Americans with top-secret clearance, and that’s way too much.”

Indeed, the Wall Street Journal recently reported that “as of last October, nearly five million people held government security clearances. Of that, 1.4 million held top-secret clearances.”

A black box

While Schneier had the broadest and most sweeping proposed changes, the other tech and legal experts that we spoke with focused more specifically on individual legal reforms, and they tended to agree on a few broad suggestions: halt untargeted blanket surveillance, restore a pre-2008 version of the Foreign Intelligence Surveillance Act (FISA) that required a probable cause-driven warrant to conduct foreign surveillance, and create additional FISC reforms such that its proceedings are more open and have more avenues for pushback.

Jennifer Granick was the first to admit that it’s difficult to know what reforms are necessary, because as Schneier pointed out, it’s impossible to know what precisely is being undertaken by the NSA and other intelligence agencies.

“We’re responding to a black box,” she said. “We don’t know the full story of what they’re doing. We don’t know the full story of how useful or not useful the various tools are. We don’t know what they do with the information. We’re responding to these fragmented amounts of information.”

Granick, like the EFF and ACLU, called for an immediate cessation to the bulk collection of all Americans’ records.

The starting point for NSA reform would be a definitive statement that court orders for bulk collection of information are not allowed and indeed are illegal. At all times, a specific person or specific identifier (like a phone number or e-mail address) or a reasonable, small, and well-cabined category (like a group on the terrorist list or member of a foreign spy service) must be specified in the context of an investigation. And a category like: “all records of all Verizon customers,” is neither reasonable, small, nor well-cabined.

But the Fourth Amendment is triggered by the collection of information, not simply by the querying of it. The NSA cannot insulate this program from Fourth Amendment scrutiny simply by promising that Americans’ private information will be safe in its hands. The Fourth Amendment exists to prevent the government from acquiring Americans’ private papers and communications in the first place.

Because the metadata program vacuums up sensitive information about associational and expressive activity, it is also unconstitutional under the First Amendment. The Supreme Court has recognized that the government’s surveillance and investigatory activities have an acute potential to stifle association and expression protected by the First Amendment.

Bringing back 2008

Until Congress enacted the FISA Amendments Act, FISA generally prohibited the government from conducting electronic surveillance without first obtaining an individualized and particularized order from the FISA court. In order to obtain a court order, the government was required to show that there was probable cause to believe that its surveillance target was an agent of a foreign government or terrorist group. It was also generally required to identify the facilities to be monitored. The FISA Amendments Act allows the government to conduct electronic surveillance without indicating to the FISA Court whom it intends to target or which facilities it intends to monitor, and without making any showing to the court—or even making an internal executive determination— that the target is a foreign agent or engaged in terrorism. The target could be a human rights activist, a media organization, a geographic region, or even a country.

Granick also argues that it sets a bad precedent for other countries, particularly those authoritarian regimes that we frown upon.

“We don’t want to give comfort to those nations that want to have free range [over their people's] data—we should have a warrant requirement and that should not be contingent on whether the person is a US person or not,” she said.

“Open and adversarial proceedings”

Finally, these legal experts would love to see a narrowing of what the FISC can and can’t do. Granick said that she’d like to see FISC’s scope narrowed so all it could do would be to “approve secret targets.”

“It cannot make secret interpretations of statute, and it cannot interpret what the 4th Amendment is or should be,” she said. “We should have an open and democratic process and not a secret court. I think that the court should not be playing the role of making legal decisions in any case. All they’re doing is approving secret targets. There’s a lesser role for an independent [ombudsman] or defendant’s advocate.”

That "lesser role" that she’s referring to is a position that former Sen. Gary Hart (D-CO) and others have suggested, which would make the FISC process more adversarial. At present, when the government comes to the FISC and asks to target a particular person—often times, getting help from the court’s staff to make it more palatable to the judge—there is no advocate for the target, which has led to a near-100 percent target approval rate. Hart has called for the creation of a “citizen’s ombudsman,” who would have adequate security clearance.

“But that individual would make the counter argument so the court would not just [have the government’s argument to consider], but the [ombudsman] would be calling into question what the government was putting forward,” he said.

Granick said that such an ombudsman position would not be necessary if all FISA did was approve secret targets—leaving the legal justification to other open courts.

The ACLU has agreed generally with these recommendations. As Jaffer testified:

Congress should ensure that the government’s surveillance activities are subject to meaningful judicial review. It should clarify by statute the circumstances in which individuals can challenge government surveillance in ordinary federal courts. It should provide for open and adversarial proceedings in the FISC when the government’s surveillance applications raise novel issues of statutory or constitutional interpretation. It should also pass legislation to ensure that the state secrets privilege is not used to place the government’s surveillance activities beyond the reach of the courts.

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Cyrus Farivar
Cyrus is a Senior Tech Policy Reporter at Ars Technica, and is also a radio producer and author. His latest book, Habeas Data, about the legal cases over the last 50 years that have had an outsized impact on surveillance and privacy law in America, is out now from Melville House. He is based in Oakland, California. Emailcyrus.farivar@arstechnica.com//Twitter@cfarivar

123 Reader Comments

It seems that the changes they'd make are actually really good suggestions and maybe some other people who are always listening should listen to this. Pretty sure they're on all the watchlists anyway for having opinions.

The only thing I felt I disagreed with was the comparison to FBI agents cost. Specifically, the NSA is more then anti-terrorism. It is specifically the means by which a decline superpower can get a leg up on all comers. Whether or not that leg up is a good thing is another question, but that is the true justification of its budget, and that is the NSA's original mission.

It seems that the changes they'd make are actually really good suggestions and maybe some other people who are always listening should listen to this. Pretty sure they're on all the watchlists anyway for having opinions.

Schneier is a world-class cryptographer who has invented several major cryptographic algorithms (including finalists for AES and SHA3) and is also a big open-data advocate. Even without his statements about the NSA he was on every watchlist the US has.

The only thing I felt I disagreed with was the comparison to FBI agents cost. Specifically, the NSA is more then anti-terrorism. It is specifically the means by which a decline superpower can get a leg up on all comers. Whether or not that leg up is a good thing is another question, but that is the true justification of its budget, and that is the NSA's original mission.

I agree with this assessment. However, one is left to question as to the "leg up" at what cost ? and why the domestic spying ? There has not been a good argument in favor of domestic snooping (or I am not aware of it).

The only thing I felt I disagreed with was the comparison to FBI agents cost. Specifically, the NSA is more then anti-terrorism. It is specifically the means by which a decline superpower can get a leg up on all comers. Whether or not that leg up is a good thing is another question, but that is the true justification of its budget, and that is the NSA's original mission.

I think the comparison to FBI agents probably isn't the best example, but his general point about having some sort of objective, evidence and results-based justification for their budget is still a good point.

“The use of outside consultants [and] private companies by these dozen and a half intelligence agencies is out of hand,” Hart said. “We don’t know how many companies there are, how many people they employ. We do know there are 1 million Americans with top-secret clearance, and that’s way too much.”

The use of tens of thousands of consultants and private companies has infected every facet of government in the past decade. Perhaps what is needed is a serious re-think to better fund and staff these government programs so they do not need to rely on outsiders who are not held to the same standard as internal employees. Increasing the number of full time personnel and funding would also serve to increase standards and compliance, with the knock-on effect of preserving secrecy.

At the end of the day, as Iraq and Afghanistan continue to wind down, there will be more money in the budget available to better fund the NSA so it can achieve its ultimate capacity and efficiency.

"that should not be contingent whether the person is a US person or not"

Glad to see this, as an Earthling not born on that particular chunk of land I don't see why it's okay to collect all my personal information, but not that of someone living on the other side of an imaginary line.

I keep seeing indications that people think that a lack of public transparency means a lack of oversight. However, that is not how our country's constitution was written or how our government and legal system is set up.

Of course when the constitution was written there was no way for the public in general to provide oversight. There was no internet, and new was often passed on somewhat erratically in many areas. However, the constitution does provide an amendment process by which it can be changed as our country's needs change, and it hasn't been changed.

Our government has three branches, each of which have responsibility to oversee the working of the other two branches. The NSA is part of the executive branch, and Congress and the courts are supposed to be providing oversight. The NSA is supposed to go to the FISA court for authorization, and the Senate and House intelligence committees are supposed to be making sure the court and the NSA are doing their jobs properly. They have the authority to subpoena and question those involved under oath.

We elect representatives that are supposed to be our voices in the discussion of how the intelligence community operates and what constitutes an unreasonable search or seizure.

I would think that if we are concerned about how the NSA might be abusing their authority and that it isn't getting proper oversight we should look at who is on the FISA court and how Judges are appointed to that court. Having the Chief Justice of the Supreme Court simply appoint whoever they choose without them facing any form of confirmation seems to be a bit weak of a safeguard. I'm also not impressed by who is on the congressional intelligence committees. I'm not really impressed by many members of congress in general, but I think there are better choices for such important committees. I also think that it is a very bad thing that new people aren't routed through these committees. It is good to have experienced people on a committee, but they also need some fresh faces from time to time.

As for more public transparency, congress can legislate that there needs to be more transparency but the constitution doesn't require it, and the intelligence community is going to risk anything that may make it easier for their targets to discover their methods or their sources. The executive branch desires the best intelligence they can get so they can make more informed decisions and less guesses.

The courts are there to uphold the constitution and make sure the laws are being implemented properly. They have to balance the needs of the public against the rights of the individual and determine if a particular type of search or seizure is "reasonable".

These are difficult tasks that it is easy for arm chair quarterbacks to criticize with the benefit of hindsight, and without all the fact. Facts that they often can't be given for reasons that they can't be told beyond something vague like national security.

I think it would be a good idea to force a new look at how the members of the FISA court and the intelligence committees get their positions and if we need to modify those, but I don't see widespread public disclosure on how the intelligence community operates as being practical.

I have a solution: instead of fighting the police state, make it even bigger, throw even more cash at it; the natural consequence will be that 100% of the adult-without-criminal-record population will eventually have a top-secret clearance. Then the problems of accountability and transparency are solved. And a hundred million people with top-secret access won't be significantly worse than one million wrt leaking etc.

How big is the NSA? What is their budget? How many requests do they make to google/apple/microsoft/etc and more importantly how many of those requests are denied? This is assuming the NSA doesn't have direct access - which has been reported as both true and false. The most important question is has all this domestic spying done us any real good?

I feel like I'm living in Enemy of the State more and more each day and it concerns me.

$100M budget?? oh no sir, lol. i was mouth agape until the next paragraph cleared that up. but great respect for schneier, just reread his book actually. and also i agree with his general thinking on this.

yes, oversight, yes, transparency. of intentions - not necessarily of methods and targets, that should be secret when necessary, for the sake of opsec - but transparency and accountability of scope and intent - open and approved by the public and its proxies. this is essential to effectively and acceptably folding these operations into a functioning democracy. and i agree about only specific targets backed up by probable cause - no blanket data gathering, no blanket metadata gathering (the difference is just semantic anyway).

and, YES, many fewer NG contractors. they won't need any more money to refocus the work internally, just the monies they already have reallocated and more effectively accounted. outside contracting is a big part of the problem here. the farther you get from elected and appointed officers of the public trust, the farther you get from accountability and clarity of mission. snowden worked for a NG contractor, his claim to have the authority to spy on anyone from his desk comes from a mindset that because they gave me the ability to do it i have the authority to do it. NO SIR. YOU DO NOT. there is a huge difference between ability and authority, and the line gets more and more blurry the farther from public service you get. just look at blackwater.

Every one agreed that the wholesale collection of phone metadata is totally out of line, so priority one should be to stop that program in it's tracks today. The legislative and judicial oversight and review is unanimously seen as so weak as to be nonexistent, so we need to fix that too.

Sadly these ideas and discussions are confined to sites like Ars Technica, you won't see them discussed in the mainstream. I still haven't seen the DEA story in any mainstream press except the Guardian and an article two days ago in the Washington Post, nor have I seen any comments from Legislators in the press.

I have a solution: instead of fighting the police state, make it even bigger, throw even more cash at it; the natural consequence will be that 100% of the adult-without-criminal-record population will eventually have a top-secret clearance. Then the problems of accountability and transparency are solved. And a hundred million people with top-secret access won't be significantly worse than one million wrt leaking etc.

It seems that the changes they'd make are actually really good suggestions and maybe some other people who are always listening should listen to this. Pretty sure they're on all the watchlists anyway for having opinions.

If I remember correctly the other NSA whistle blowers notified the public of the NSA's killing a cheaper, more efficient, and less invasive(illegal) intel gathering project in favor of the current one which makes it easy for them to spy on law abiding citizens. Anyone here remember their names? I think there were 3 of them. Each was forced out after they went public but were never prosecuted.

The use of tens of thousands of consultants and private companies has infected every facet of government in the past decade. Perhaps what is needed is a serious re-think to better fund and staff these government programs so they do not need to rely on outsiders who are not held to the same standard as internal employees. Increasing the number of full time personnel and funding would also serve to increase standards and compliance, with the knock-on effect of preserving secrecy.

I don't see a meaningful difference between people employed by the government versus employed by a government contractor. A good contractor holds their employees to a higher standard than a bad government department. The root of the problem is people are fallible and shouldn't have this kind of access to data, regardless of whether their business card says NSA or Booz Allen Hamilton.

The only thing I felt I disagreed with was the comparison to FBI agents cost. Specifically, the NSA is more then anti-terrorism. It is specifically the means by which a decline superpower can get a leg up on all comers. Whether or not that leg up is a good thing is another question, but that is the true justification of its budget, and that is the NSA's original mission.

Not that I agree with the NSA's actions these days, but, get the story straight.

The NSA was formed to do foreign signals intelligence, in parallel with the CIA's foreign human intelligence. Please note the emphasis on the word foreign.

Domestic intelligence was outside the NSA's original mission. Domestic intelligence was handled by the FBI and other domestic agencies which specialized in constitutionally-governed domestic investigations. NSA, CIA, et al, engaged in the dirty business of spying on other nations (which has few rules).

The government took down that firewall, and now allows the NSA to operate domestically, which is beyond its original mandate. Given the way the NSA collects and distributes the data gathered, it it also unconstitutional on its face. Nixon's "if the president does it, it's not illegal" bullshit argument doesn't fly, nor does the Congress' unwillingness to do its job and oversee these organizations.

Since all intelligence work is about getting 'a leg up,' I can see your point, but you leave the impression that the NSA is something the government recently invented, when it is not.

The use of tens of thousands of consultants and private companies has infected every facet of government in the past decade. Perhaps what is needed is a serious re-think to better fund and staff these government programs so they do not need to rely on outsiders who are not held to the same standard as internal employees. Increasing the number of full time personnel and funding would also serve to increase standards and compliance, with the knock-on effect of preserving secrecy.

I don't see a meaningful difference between people employed by the government versus employed by a government contractor. A good contractor holds their employees to a higher standard than a bad government department. The root of the problem is people are fallible and shouldn't have this kind of access to data, regardless of whether their business card says NSA or Booz Allen Hamilton.

I'd like someone to tell me, because I honestly don't know: Do contractors swear an Oath, as every Federal employee does?

I've heard a few people say, quite seriously, that had they been in Snowden's position, they would have found the act of whistleblowing much harder, if they had been in civil or military service, and thus working under such an Oath. (Yeah, it sounds a bit silly to me, but human behavior is not always rational.)

Perhaps Ars should ask the technical experts how they would fix the miserable state of security on the Internet. That is a task somebody might hope they could actually do. The NSA might have its problems. But its record looks good compared to the miserable record of the technical experts on Internet security. I watched them flounder for the 8 years I went to the IETF. There is not much sign they have gotten better since.

I was hoping these "experts" settle whether or not merely passive collection (obtained without the participation or "inconvenience" of the source) and storing of meta data constitute surveillance. In my mind it does not.

The use of tens of thousands of consultants and private companies has infected every facet of government in the past decade. Perhaps what is needed is a serious re-think to better fund and staff these government programs so they do not need to rely on outsiders who are not held to the same standard as internal employees. Increasing the number of full time personnel and funding would also serve to increase standards and compliance, with the knock-on effect of preserving secrecy.

I don't see a meaningful difference between people employed by the government versus employed by a government contractor. A good contractor holds their employees to a higher standard than a bad government department. The root of the problem is people are fallible and shouldn't have this kind of access to data, regardless of whether their business card says NSA or Booz Allen Hamilton.

I'd like someone to tell me, because I honestly don't know: Do contractors swear an Oath, as every Federal employee does?

I've heard a few people say, quite seriously, that had they been in Snowden's position, they would have found the act of whistleblowing much harder, if they had been in civil or military service, and thus working under such an Oath. (Yeah, it sounds a bit silly to me, but human behavior is not always rational.)

They sign a Non Disclosure Agreement. The pressure is high to behave better than government employees (for various reasons).

The only thing I felt I disagreed with was the comparison to FBI agents cost. Specifically, the NSA is more then anti-terrorism. It is specifically the means by which a decline superpower can get a leg up on all comers. Whether or not that leg up is a good thing is another question, but that is the true justification of its budget, and that is the NSA's original mission.

I think the comparison to FBI agents probably isn't the best example, but his general point about having some sort of objective, evidence and results-based justification for their budget is still a good point.

I wonder if one way to qualify, just how abnormal the current situation in regard to the NSA is, is to contemplate that no such basic "economic" justifications appears to be available?

In a society that (in general) seems to hold rational "hard" economic decision making in such high esteem, especially when it comes to justification for government budget and expenditure in all other domains. (In relation to many European countries, where "soft" fuzzy values, like life quality, equality, etc, can have a much larger weight).

I wonder if there is something about "security" or "national defense" in regard to the current American mindset, that turns off critical thinking, and rational contemplation.

Can not help but thinking around a quote by Hannah Arendt, from the "Origin of Totalitarianism",

"Nothing proved easier to destroy, then the privacy and private morality of people who thought of nothing but safeguarding their private lives."

Sadly, the US courts have [b]not held that the 4th Amendment applies to electronic communications.[b]

Until that is changed, we are screwed.

My problem is not whether or not an electronic document counts as a paper, it's with ignoring the second half "No warrants shall issue except upon oath or affirmation of the specific places to be searched and property to be seized." I feel 100 million people at a go is getting a little non specific.

Indeed, the Wall Street Journal recently reported that “as of last October, nearly five million people held government security clearances. Of that, 1.4 million held top-secret clearances.”

Am I led to believe that the number of top-secret clearances grew 169% in a mere three years? Considering the amount of time it typically takes just to go through the vetting process (absolute minimum 3-6 months, usually much longer), I find that growth rate hard to believe.

To be fair, most of those people out here on the west coast and in places like Huntsville are not even remotely related to the NSA, DHS, or CIA stuff. They work at defense contractors like Lockheed, Boeing, etc. who regularly contract with the military to design stuff like airplanes, rockets, and satellites. So, while the number of TS clearances might be growing, implying that they are all working in intelligence community is a bit misleading.

The use of tens of thousands of consultants and private companies has infected every facet of government in the past decade. Perhaps what is needed is a serious re-think to better fund and staff these government programs so they do not need to rely on outsiders who are not held to the same standard as internal employees. Increasing the number of full time personnel and funding would also serve to increase standards and compliance, with the knock-on effect of preserving secrecy.

I don't see a meaningful difference between people employed by the government versus employed by a government contractor. A good contractor holds their employees to a higher standard than a bad government department. The root of the problem is people are fallible and shouldn't have this kind of access to data, regardless of whether their business card says NSA or Booz Allen Hamilton.

I'd like someone to tell me, because I honestly don't know: Do contractors swear an Oath, as every Federal employee does?

I've heard a few people say, quite seriously, that had they been in Snowden's position, they would have found the act of whistleblowing much harder, if they had been in civil or military service, and thus working under such an Oath. (Yeah, it sounds a bit silly to me, but human behavior is not always rational.)

They sign a Non Disclosure Agreement. The pressure is high to behave better than government employees (for various reasons).

Contractors, and I'm talking about individuals working for contracting companies, fill jobs the government doesn't want to fill with a military person or a federal employee. Why? Because the government doesn't want the long-term costs associated with providing pensions, health insurance and other benefits for direct GS employees or military personnel. The .gov prefers contractors that may cost a bit more in the short-term, but are ultimately cheaper to employ. The .gov just chooses to go the cheap route because, like many businesses, it doesn't care enough about its people to exchange a fair benefits and retirement package for those who work for them.

As to the assertion that a given contractor is possessed of less integrity or is somehow less dedicated and, by this, more of a security risk; that's also bullshit. Every contractor with a security clearance goes through the same investigation for their security clearance that a GS or green-suiter does. In fact, many contractors receive their security clearance in the military or as a GS employee before moving on to the contracting world. Any and every person with access to classified information is vetted and cleared based on a standard risk analysis, no matter which "color" of employee they are.

At the end of the day, there are still X amount of jobs to fill based on a given mission. How the .gov puts those butts in those seats doesn't really matter...there's still X amount of jobs to fill. The .gov just tries to do it on the cheap and usually does.

The actual contracting companies, however, may be a different story. I don't know enough about those workings to talk meaningfully about it other than it's likely they make money hand-over-fist by pimping out the cleared people they hire. That's probably where the ire should be directed.

How big is the NSA? What is their budget? How many requests do they make to google/apple/microsoft/etc and more importantly how many of those requests are denied? This is assuming the NSA doesn't have direct access - which has been reported as both true and false. The most important question is has all this domestic spying done us any real good?

I feel like I'm living in Enemy of the State more and more each day and it concerns me.

They do not know how big it, they cant locate all the personal files and there's no system in place to search.Their budget is however much they spend. They make more then they should, if they are denied, they just flex power to get information. Done the citizens any good - no, thats not who its for.

This is a real concern, top officials are telling lies left and right and things are getting out of hand. Interesting to see what it takes to stop it, if possible this deep in

I don't see a meaningful difference between people employed by the government versus employed by a government contractor. A good contractor holds their employees to a higher standard than a bad government department. The root of the problem is people are fallible and shouldn't have this kind of access to data, regardless of whether their business card says NSA or Booz Allen Hamilton.

Contractors are rarely held to account. If they are, it happens much later, at great expense, usually resulting in symbolic firing of a few expendable individuals. After all, who wants a scandal? Contracting companies spend a great deal of resources protecting themselves, hiring expensive law firms ect... all of which adds to their bottom line, and increases their bill to the government. ie. your tax dollars at work.

I don't see a meaningful difference between people employed by the government versus employed by a government contractor. A good contractor holds their employees to a higher standard than a bad government department. The root of the problem is people are fallible and shouldn't have this kind of access to data, regardless of whether their business card says NSA or Booz Allen Hamilton.

There are two concerns I can think of. One is that by not being part of the government, they can escape some of the rules. The other is that a business has a profit motive, while a government agency theoretically does not. This can change their priorities considerably.

I don't see a meaningful difference between people employed by the government versus employed by a government contractor. A good contractor holds their employees to a higher standard than a bad government department. The root of the problem is people are fallible and shouldn't have this kind of access to data, regardless of whether their business card says NSA or Booz Allen Hamilton.

There are two concerns I can think of. One is that by not being part of the government, they can escape some of the rules. The other is that a business has a profit motive, while a government agency theoretically does not. This can change their priorities considerably.

Most importantly, you can show how you are "shrinking" government headcount and "reducing" government payroll and also gain campaign contributions at the same time by outsourcing government jobs to contracting firms.

I'd like to offer an alternative perspective for the purpose of discussion if I may. I'm a 51 year-old Brit who grew up during the infamous IRA bombing campaign against civilian targets in the UK. My school was the subject of numerous bomb-threats (admittedly all of which were false, and a number of which were delivered just before math lessons) but a party from my school was also due to visit the Tower of London on 17 July 1974 when a bomb killed one (a Scandinavian school kid if I remember correctly) and injured 41 others. We were late, delayed by the equally infamous British Rail. On 7/7 a colleague was also the subject of a public transport delay and so escaped being killed at Edgware Road. Whatever your perspective on this and other incidents, you will presumably recognise that in the UK we have had quite a lot of civilian-targeted terrorism in the past half-century. In addition, being Ars readers, you'll doubtless have also read about GCHQ, the UK government signal intelligence centre that uses US developed technology to listen in on phone calls, emails, tweets etc both in the UK and internationally. For this particular development I say, and without a trace of irony, thank you very much.The thing is, as a Brit I've grown up used to being spied on. We have more CCTV cameras in London than virtually any other capital on the planet and doubtless even this post is being recorded somewhere. And frankly, I don't care. I am genuinely happy for GCHQ to be monitoring SigInt in the UK, even my personal phone calls. I don't care if they listen in to me chatting to my wife or family, providing they are also listening in to someone else who is planning another underground bomb. If this intrusion is the price I have to pay for not having my legs blown off by some fanatic then I'll cough up, no hesitation.

But.

The point at which you'll find me lobbing Molotov cocktails in Parliament Square is the point at which that information is passed back to civilian authorities for purposes other than the prevention of terrorism. The information gathered by GCHQ (and so I would respectfully suggest the NSA) should be used for the sole and express purpose of protecting the population from violent harm. The use of that information for merely criminal purposes is in my opinion grounds for civil disobedience. The threat of terrorism is real, the use of signal intelligence is an appropriate response. I'd suggest the real debate here is not whether covert intelligence is gathered, but whether it is disposed of. I'm really happy for GCHQ and the spooks at MI5 to read my emails and this post, so long as they never let it fall into the hands of dangerous political ideologues (like Tony Blair for example) (Oh yes he was). Gathering information is one thing, controlling its use and dissemination is something else entirely.

Yesterday I was reading an article about how the DOJ and SEC have failed to punish anyone on Wallstreet for their recent crimes. I read how MF Global was able outright to steal $1.6B of money that belonged to customers and not one indictment has, or will, come of it.

The DOJ and SEC are afraid to try to prove fraud. So they don't bother.

Now it has been revealed that the NSA has been feeding tips to the DEA. So why can't we use this enormous treasure trove of information to find the evidence the DOJ and SEC need to prosecute Wall Street? I"m sure they can find plenty of collusion and corruption in the phone calls and emails. They stole billions, we have the evidence. So we have no excuse for refuse to act now.

Sadly, the US courts have [b]not held that the 4th Amendment applies to electronic communications.[b]

Until that is changed, we are screwed.

My problem is not whether or not an electronic document counts as a paper, it's with ignoring the second half "No warrants shall issue except upon oath or affirmation of the specific places to be searched and property to be seized." I feel 100 million people at a go is getting a little non specific.

Understandable, but it is all in interpretation. "Specific places to be searched" could very easily be interpreted in a way where "At&t Phone records" fits that description. It isn't being ignored, it is being interpreted in a specific way that goes against your (and many other people's) personal beliefs.